Common use of Retained Shares Clause in Contracts

Retained Shares. (a) All Retained Shares shall be held by the Trust for the benefit of MSF and the MSF Subsidiaries or MSF’s designees until the earlier of (i) the disposition of the Retained Shares as provided herein and (ii) the Trust Termination Date, as defined in Section 6 below. (b) From the Delivery Date until the 90th day following the Effective Time, or such earlier date as the Company may authorize by an Officer’s Certificate delivered to the Trustee, MSF may transfer any Company Share that are Retained Shares at the time of transfer, only to the Company or to affiliates of MSF or the Company, provided such transfers are made pursuant to available exemptions from registration under the Securities Act of 1933 and the rules and regulations thereunder (the “Securities Act”), and provided further that any such transferees are restricted from any transfers of such Retained Shares until after the 90th day after the Effective Time (the “90th Day”) and then only pursuant to (i) an effective registration statement under the Securities Act as to which no stop orders are in effect or (ii) available exemptions from registration under the Securities Act. (c) Upon and following the 90th Day, MSF or the MSF Representatives may direct the transfer by written notice to the Trustee and the Company to any underwriter or placement or other agent for disposition of Retained Shares pursuant to (i) an effective registration statement under the Securities Act as to which no stop order is in effect or (ii) available exemptions from registration under the Securities Act, in each case subject to the Transfer Restrictions. (d) In addition to the securities law restrictions in preceding paragraphs (b) and (c) of this Section, MSF may transfer Retained Shares held by the Trust (i) in transactions to its affiliates, pursuant to exemptions from registration under the Securities Act prior to the Distribution Date and subject to non-objection or approval by or waivers from the Board of Governors of the Federal Reserve or its delegee (the “Federal Reserve”), (ii) pursuant to one or more Company registration statements that have been declared effective by the SEC, (iii) in transactions where no transferee or associated group of transferees would receive more than 2% of the outstanding Company voting securities of any class, (iv) in transactions where the transferee controls more than 50% of the Company’s outstanding voting securities without transfer from or at the direction of MSF, or in other transactions where the Federal Reserve has no objections. MSF or the MSF Representatives shall notify the Trustee and the Company in writing of any intended transfer of Retained Shares held by the Trust herein and confirm in such writing MSF’s compliance with this Section 5 and the Separation Agreement, not less than 15 Business Days prior to any such transfer. MSF and the Company shall jointly notify the Federal Reserve of any such disposition. (e) Retained Shares, if any, held by the Trust on the Trust Termination Date, shall be delivered to MSF and the respective MSF Subsidiaries that are Record Holders, or with the Company’s written consent, to any designee of MSF, in accordance with the Separation Agreement and pursuant to written direction delivered to the Trustee and the Company at any time before or after the Delivery Date, subject to Federal Reserve non-objection confirmed by an Officer’s Certificate from MSF. Absent express Federal Reserve non-objection confirmed by Officer’s Certificates from the Company and the MSF Representatives to the Trustee, in no event shall more than an aggregate of (i) 4.9% of the then outstanding shares of Company Class A Stock and (ii) 4.9% of the then outstanding shares of Company Class B Stock otherwise may be returned to MSF and MSF Subsidiaries, and MSF or the MSF Representatives and the Company shall determine the disposition of any Company Shares in excess of such amounts. As between the Trustee and the Company, the Company shall be solely responsible for all such matters, and shall confirm such matters to the Trustee by an Officer’s Certificate.